Unreal Distinctions: The Exclusion of Unfairly Obtained Evidence under S. 24(2) of the Charter
AbstractThis article begins with an examination of the historical treatment of illegally obtained evidence in common law jurisdictions outside of Canada. Pre- Charter Canadian law, as well as pre-Charter commentary and proposals for reform are also discussed. The article then examines post-Charter jurisprudence in Canada, exploring the problems and inconsistencies in the courts' interpretation of section 24(2). The author suggests that the distinction between real/self-incriminatory evidence as a basis for exclusion is philosophically and practically flawed, and should be abandoned in favour of an approach which considers the "discoverability" of the evidence in question.
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